Saturday, February 24, 2024

A guide to understanding war crimes by Israel

As Israel’s recent aggression on Gaza pauses after the 48th day, the state has accumulated a long list of what looks like blatant violations of the International Humanitarian Law (IHL), the law aimed to curb the brutality of war and set universal basic limits to address humanitarian concerns during armed conflict.

Law experts have called out Israel for considering itself above the law and criticizing the drawn-out history of impunity the occupying state continues to enjoy. Before we continue, we must understand that IHL does not stop wars from taking place, instead, it offers restrictions to how it should be carried out. Theoretically, the aim of war must not be to destroy the enemy, but only to overpower their military ability.

The History

The founder of IHL is Henri Dunant, a Swiss businessman, who, en route to France, encountered the Battle of Solferino and witnessed wounded soldiers who were left to die due to lack of help. He set up a makeshift hospital at a church in the village of Solferino and treated the wounded, French or Austrian, without discrimination, with the help of ladies and elderly in the village.

Upon his return, he wrote a book called “The Memory of Solferino” where he proposed an independent entity in each state to protect and care for the wounded during war regardless of which side they come from, and partook in a team to establish the International Red Cross Committee.

The first-ever set of laws entailed that Red Cross Societies along with military medical service, both protected by their medical emblems, must adhere to the duty to respect, protect and care for sick or wounded military. After the world wars, the list of protected persons and the degree to which they were protected were expanded to include prisoners of war, civilians, press correspondents, etc. No one can create special agreements that go against these protections.

The Hague Law and the Geneva Law

The Hague Conventions discuss the means and methods of warfare, like the prohibition of certain weapons, and outlines what the military can do in the context of armed conflict, whereas the Geneva Conventions are concerned with the protection of victims, civilians, prisoners of war, and wounded or sick soldiers; it tells us what protected persons should not suffer during war.

The Principles of IHL

The principle of military necessity: A belligerent is a nation or person engaged in war or conflict. This principle notes that a belligerent is allowed to pursue actions that will allow them to fulfil the objective of war, as long as it is explicitly allowed by law.

The principle of Limitation: This principle does not allow anyone to go for a “total war”; wars are not meant to be won by any means. There are certain restrictions on weapons that can be used, for example. 

Principle of Humanity: This simply means that the protected persons, those who are not involved in the actual fighting, must be treated humanely with minimum pain. 

This principle has several facets; those involved in the fighting must treat protected persons with respect, and they have a duty to not mistreat, or threaten them. They also must defend themselves from the sufferings of the war, for example, prisoners of war must be moved to a secure camp that is immune from attack. It also includes the principle of equality, that protected persons must not be discriminated against regarding irrelevant criteria, like nationality, religious beliefs, political opinions, race, colour, gender, etc. This principle also reiterates that protected persons should be treated with dignity.

Principle of Distinction: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”-Article 48 of Additional Protocol I to the Geneva Convention (in quotes)

This principle requires that belligerents must distinguish between military objectives and civilian persons or objects at all times. They must only target and attack military objectives, like tanks, military installations, soldiers etc., which contributes to military action, while leaving alone civilian buildings such as a school, homes or church. 

If a fighting military entity makes no distinction between such objects when targeting and is indiscriminately attacking, they are violating IHL where such indiscriminate attacks are prohibited.

If they come across objects that are normally used for civilian purposes, they should presume that it does not contribute to military action.  

The advantage gained when attacking an object must be military only, like weakening the armed forces of the enemy. Meaning that the attack must not be carried out to gain propaganda or political advantages. 

The Principle of Proportionality: The military advantage gained by an operation must be bigger than the damage that is caused to civilians and civilian objects. A belligerent, before planning an operation, must carefully assess if their action will bring about excessive civilian casualties compared to the advantage gained. If that is so, that attack or action is prohibited. They must look at alternative means to get an advantage instead.

Dual Use Objects: Israel often attempts to justify their attacks on civilian objects, like schools and churches, by accusing the resistance movement Hamas of using them as military bases. These accusations show that Israel renders the civilian object as a Dual-Use Object. 

As we said, all civilian objects are protected from attack. However, If there is solid, unbeatable evidence that an object that is usually used for civilian purposes may be used for military purposes, they are a legitimate target as long as the principle of proportionality is taken into account. 

Simply put, if they have concrete evidence that there is military activity in the civilian object, they must think about whether an attack there would lead to excessive civilian death or not. If the advantage gained when attacking is measly compared to the civilian casualties caused, the attack is illegal and prohibited. Israel, however, has repeatedly been bombing civilian objects without much consideration for civilian damages that are caused; more often than not having flimsy excuses with no solid evidence, such as claiming that hospitals facilitate tunnels when they are only a water conservation pit. 

#NotATarget

This hashtag has been used under posts of the Palestinian Red Crescent societies following the occupying force’s targeting of protected objects and people. Certain entities are protected under IHL, and must not be a target of attack, they include:

Civilians: Anyone who does not engage in the battle is a civilian protected from being targeted under IHL. It is a war crime to intentionally direct an attack against civilians (who are not directly participating in hostilities).

The Israeli occupying entity has not only fired at their civilians at the Nova Music Festival attack but also Palestinians following their land raids in Gaza, targeting those fleeing in search of a safer space. 

Journalists and War correspondents: Journalists in war zones must be treated as civilians and protected as such. The journalist death toll in Gaza tops 50 according to recent reports.

Prisoners of War: IHL offers a series of protections to soldiers who are out of action (Hors de combat) and to civilians who are captured during war. They are supposed to be fed and kept away from the dangers of war.

Exemplarily, the testimonies and interviews of the Israeli captives released by the resistance movement Hamas confirm that they have adhered to this part of the IHL. Yocheved Lifschitz, 85 old released captive, said upon release that the captors “took care of every detail”, and “were friendly, took care of them and gave medicines.”. They also noted that they ate the same things their captors did and slept on mattresses in tunnels. Such adherence to international law took the international community by surprise, with many noting from many videos released by the Resistance showing hostages having tea with combatants, shaking hands with them upon release and even having their manicures intact, noting that efforts were put to keep them safe when held captive. 

Whereas in a recent article, Amnesty International has called out Israel for “Horrifying cases of torture and degrading treatment of Palestinian detainees”, noting that there has been a stark increase in art-detainment to more than 2,200 Palestinians since October 7th who have been subject to “humiliation, torture and inhumane treatments”.

Medical Professionals, Hospitals and Medical/Red Crescent Workers: According to IHL, health establishments and units, including hospitals, should not be attacked. This protection extends to the wounded and sick as well as to medical staff, Red Cross/Crescent workers and means of transport, provided they are marked. 

Hospitals can lose their protection if they are found to be protecting able-bodied military men, however, a belligerent must run a factual assessment to make sure and then send a warning to them to stop such activities and evacuate, before targeting the previously protected place. Even during so, all parties to the conflict must consider proportionality and precaution.

However, Israel has attacked parts of hospitals, including entrances as well as marked ambulances carrying the wounded, in a blatant violation of the principle of distinction and detaining Palestinian Red Crescent Society paramedics, paying no heed to their protected status. 

Additionally, it is also prohibited to cut off indispensable means of survival, such as foodstuffs or water, and starvation is also prohibited as a means of warfare. The Israeli state attacked a water reservoir that supplies water to neighbourhoods in Rafah, cutting off the water supply. 

Laws are simply words on paper if those who break them are not sanctioned. It’s crystal clear that Israel has committed a series of violations of the International Humanitarian Law, thus all eyes are on the International Criminal Court to see what actions it would take to uphold the integrity of International Law.

Hana Muneer
Hana Muneer
Hana Muneer is an independent journalist from Kannur, Kerala.
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